Petroleum Act 1936 (WA)

Western Australia Petroleum Act 1936 This Act was repealed by the Petroleum Act 1967 s. 3 (No. 72 of 1967) as at 5 Sep 1969 (see s. 2 and Gazette 5 Sep 1969 p. 2540). Though repealed, this Act continues to apply to the Barrow Island lease and renewals of it (see No. 72 of 1967 s. 134 2). Western Australia Petroleum Act 1936 Contents 1. Short title 1 2. 1 3. Act divided into Parts 1 Part I — Preliminary 4. Interpretation 3 5. Saving provisions relating to licenses issued prior to this Act 5 5A. Power to declare certain reserves Crown land for purposes of, and to apply, this Act thereto 6 5B. Reserve No. A11648 Barrow Island Crown land for purpose of this Act 6 Part II — Administration 6. Act administered by the Minister through the Department 8 7. Warden 8 Part III — General 9. Petroleum declared to be property of the Crown 9 10. Reservation in Crown grants 9 11. Power to obtain petroleum 9 12. Land may be resumed 10 13. Governor to have right of pre-emption of petroleum 11 14. Helium 12 19. Permit to explore, license to prospect, etc. not transferable without Minister's approval 12 19A. Prohibitions against exploring, prospecting and mining for petroleum 13 20. Land comprised in a license to prospect or a lease may be entered for certain purposes 13 21. Power to agree as to amount of compensation 14 22. Measure of compensation 14 23. Where no agreement, warden to determine compensation 15 24. Compensation already received to be deducted 15 25. Owner of private land in vicinity of lease or license entitled to compensation 15 26. Compensation for further damage 16 27. Holder of permit, licensee or lessee not to commence operations on private land until compensation tendered or agreed upon 16 28. Restriction on granting license or lease in relation to certain private lands 17 28A. Compensation payable to lessee of pastoral lease for damage to improvements and consequential damage 17 28B. Determination of partial compensation 18 28C. Security for compensation 19 28D. Matters for which compensation not payable 19 30. Lien for wages 20 31. Permission given for geological investigations 20 Part IV — Permits, Licenses, and Leases Division 1 — Permits to Explore 32. Minister may issue permits to explore 22 33. Area of land for which permit may be issued 22 34. Applications 22 35. Provision where application for permit approved 22 36. Same person may holder unlimited number of permits to explore 23 38. Duties of holder permit to explore 23 39. Minister may direct certain operations to be conducted 25 41. Permit to explore may be cancelled 25 Division 2 — Licenses to Prospect 42. Minister may grant licenses to prospect 26 44. Applications 26 45. Provisions when application for license to prospect approved 27 46. Effect of license to prospect 28 48. Fees for licenses to prospect 28 49. Duties of license 28 54. License to prospect may be cancelled 30 Division 3 — Petroleum Leases 55. Governor may grant petroleum lease 30 55A. Holder of license granted after 1st January 1955, may acquire certain area of land 31 56. Applications 32 58. Shape of land in petroleum lease 33 59. Term of lease 33 60. Rent of lease 33 60A. Lessee to furnish bond 34 61. On approval of application for lease, applicant may enter land 34 62. Lease instrument to be prepared and registered 35 63. Covenants and conditions of petroleum leases 35 64. Acceptance of rent not to be deemed a waiver 37 65. Forfeiture of leases 37 66. Lessee may surrender lease 38 69. Minister to have access to lease 38 70. Lessee may erect buildings and machinery on lease 38 71. Royalties 38 72. Return to be furnished 39 73. Officers may examine books, etc. 40 74. Payment of royalty: how enforced 40 75. Penalties 40 76. Exemption from labour conditions 40 77. Lessee not to drill within prescribed distance of another lease 41 78. Applications for exemption 41 Division 4 — General 78A. Special obligations of licensees and lessees 43 78B. Governor may create reserves 43 78C. Power to include conditions in permit, license or lease to protect native fauna and flora 44 Part V — Caveats 79. Provisions relating to caveats 46 80. No dealing to be registered while caveat in force 47 81. Parties to a contract of sale may lodge caveat 47 Part VI — Administration of Justice 82. Establishment of Warden's Court 48 83. Warden's Court a court of record 48 84. Time and place for holding court 48 85. Matters in respect of which Warden's Court to have jurisdiction 49 86. Recovery of penalties 50 87. Procedure 50 88. Mode of trial: costs 51 89. Persons under twenty-one may sue and be sued 52 90. General powers of the court 52 91. Interim injunction 52 92. Order for possession 53 93. How judgments and convictions to be enforced 53 94. By whom warrants may be served 53 95. No proceedings to be dismissed for informality 54 96. Record and formal drawing up of judgments 54 97. Additional power of the Court 54 98. Orders may be enforced by commitment 55 99. Punishment of persons guilty of contempt 55 100. Interpleader 56 101. Who may take affidavits 57 102. Copies of decision or order to be supplied 57 103. Proof of decision of Warden's court 57 104. Special case may be reserved for Supreme Court 57 105. Appeal to Supreme Court 58 106. Appeal on fact or law 59 107. Notice and grounds of appeal 59 108. Setting down appeal 59 109. Appeal may be by way of rehearing 60 110. When appeal deemed to be abandoned 60 111. Proceedings when appeal abandoned 60 112. Order of appellate court and costs 61 Part VII — Miscellaneous 113. Offences 62 114. Recovery of penalties 63 115. Persons unlawfully on land 63 116. Regulations 63 Notes Compilation table 67 Western Australia Petroleum Act 1936 AN ACT relating to Petroleum. BE it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same, as follows:— 1. Short title This Act may be cited as the Petroleum Act 1936, and shall come into operation on a day to be fixed by Proclamation 1. 2. This Act shall be read and construed subject to the provisions of section 4 of the Western Australia Constitution Act 1890 (Imperial), so far as the same may be applicable. 3. Act divided into Parts This Act is divided into Parts, as follows: — PART I. — Ss. 4 and 5: — PRELIMINARY. PART II. — Ss. 6 to 8: — ADMINISTRATION. PART III. — Ss. 9 to 31: — GENERAL. PART IV. — Ss. 32 to 78: — PERMITS, LICENSES, AND LEASES. Division 1. — Ss. 32 to 41: — Permits to explore. Division 2. — Ss. 42 to 54: — Licenses to prospect. Division 3. — Ss. 55 to 78: — Petroleum leases. Division 4. — Ss 78A-78B: — General. PART V. — Ss. 79 to 81: — CAVEATS. PART VI. — Ss. 82 to 112: — ADMINISTRATION OF JUSTICE. PART VII. — Ss. 113 to 116: — MISCELLANEOUS. [THE SCHEDULE: — Repealed: No. 8 of 1940s. 2.] [Section 3 amended: No. 8 of 1940 s. 3.] Part I — Preliminary 4. Interpretation In this Act, subject to the context — Aerial survey means the examination of the earth's surface by an observer in an aeroplane or other apparatus capable of maintaining itself in the air without the aid of solid support, and the delineation of features visible on the earth's surface, whether by means of photography or any other method. Casinghead petroleum spirit means any liquid hydrocarbons obtained from natural gas by separation or by any chemical or physical process. Crown land means all land which has not been dedicated to any public purpose, or reserved, or which has not been granted in fee or lawfully contracted to be so granted, or which is not held under lease for any purpose except pastoral or timber purposes. The term includes commons, State forests, timber reserves, and any reserve declared by the Governor to be Crown land for the purposes of this Act, and all land between high and low-water mark on the sea shore and on the margin of tidal rivers and below low-water mark, and also includes the sea-bed and subsoil of the submarine areas contiguous to the coast of Western Australia and its Dependencies to the extent seawards to which State jurisdiction for the time being extends. Department means the Department of Mines. Drilling means the perforation of the earth's surface crust by mechanical means not involving the descent of workmen into the hole caused by such perforation and whether such hole is vertical, inclined or horizontal. The term also includes all operations for preventing collapse of the sides of the hole made by drilling or for preventing such hole from being filled with extraneous materials including water. Gas means natural gaseous hydrocarbons, whether associated with oil or not. Geologist means a person who has received such training in the science of geology as the Minister may require, and who has been approved in writing by the Minister as a fit and proper person to carry out geological surveys under and for the purposes of this Act. Geological survey includes the examination of areas in the field, the collection of necessary specimens of rocks and other materials, investigations in the laboratory, the preparation of maps and geological sections, and all other operations essential for the determination of the geological structure of any such area. Geophysical survey means the examination of an area with the aid of accurate instruments of a prescribed type, with the object of determining some or all of the physical constituents of geological formation at or below the surface of the earth in such area. Minister means the Minister for Mines, or the responsible Minister of the Crown for the time being charged with the administration of the Mining Act 1904. Natural gas means gas obtained from bore holes and consisting primarily of hydrocarbons. Payable, as applied to petroleum, means petroleum of such quantity and quality that it can under ordinary circumstances be obtained or produced with profit. Permit to explore means a permit to explore with a view to the discovery of petroleum. Petroleum includes all naturally occurring hydrocarbons in a free state, whether solid, liquid, or gaseous, and oxidation products thereof, which are contained in the rocks of the earth's crust and which are capable of extraction therefrom by purely mechanical methods not involving the application of heat or chemical processes. Petroleum deposit means any accumulation of petroleum at or below the surface of the earth. Private land means any land which has been or may hereafter be alienated from the Crown for any estate of freehold, or is or may hereafter be the subject of any conditional purchase agreement, or of any lease or concession with or without the right of acquiring the fee simple thereof, other than for pastoral or timber purposes. Producing well means a bore hole drilled with the object of obtaining petroleum from a petroleum deposit. Prospect or to prospect means to search for a petroleum deposit. Reconnaissance survey means a rapid preliminary examination of an area in less detail than is required for a geological survey. Sand includes any geological formation sufficiently porous to contain or absorb appreciable quantities of free petroleum, water, or gaseous substances. Scout drilling means the drilling of bore holes for the purpose of procuring scientific information, and not with the immediate object of obtaining payable petroleum. Test well means a bore hole drilled with the object of determining the presence or absence of petroleum at a particular locality. Warden means the person for the time being holding office as Under Secretary for Mines for the purposes of the Mining Act 1904, and includes a stipendiary, police, or resident magistrate to whom the warden may at any time temporarily delegate his powers as warden under and for the purposes of this Act. Water shut-off means all operations necessary for the exclusion of water from any source from any portion of a bore hole drilled in any area which may contain petroleum. [Section 4 amended: No. 8 of 1940 s. 4; No. 66 of 1954 s. 2.] 5. Saving provisions relating to licenses issued prior to this Act Every license to occupy Crown land for the purpose of prospecting for mineral oil issued prior to the commencement of this Act under the provisions of the Mining Act 1904, shall, if still subsisting, continue in operation after the commencement of this Act as a license to prospect under this Act; and the holder thereof shall, by virtue of such license, be entitled to all the privileges and be subject to all the obligations of the holder of a license to prospect issued under this Act for the balance of the term of such first-mentioned license. 5A. Power to declare certain reserves Crown land for purposes of, and to apply, this Act thereto (1) Notwithstanding the Land Act 1933, or any other Act, the Governor, by proclamation, may declare that any land of the Crown or part thereof reserved for or dedicated to any public purpose under any Act and howsoever classified that — (a) is not Crown land within the meaning of that expression in section 4 of this Act; and (b) is specified in the proclamation, is Crown land for the purposes of this Act, and is land to which this Act applies, so long as the proclamation remains in force. (2) Subject to this Act, a proclamation made under subsection (1) of this section — (a) does not otherwise affect the purpose for which any land specified therein was reserved or dedicated; and (b) may, at any time by proclamation, be revoked or varied. [Section 5A inserted: No. 85 of 1966 s. 2.] 5B. Reserve No. A11648 Barrow Island Crown land for purpose of this Act It is hereby declared that — (a) the land of the Crown comprising Barrow Island reserved for a public purpose under the Land Act 1933, as reserve No. 11648 and classified as of Class "A" shall be deemed to be, and to have always been, Crown land for the purposes of this Act; (b) a permit to explore or license to prospect issued or granted under this Act or purporting to have been so issued or granted before the commencement of this section in respect of the land comprised in the reserve referred to in paragraph (a) of this section, shall be deemed to have been always lawfully issued or granted under this Act and a petroleum lease may be issued under this Act in respect of that land in such form and containing such additional reservations, covenants and conditions in addition to those prescribed by or under this Act as the governor approves; (c) subject to paragraphs (a) and (b) of this section, a permit to explore or license to prospect issued or granted under this Act before the commencement of this section in respect of an area of land that includes any land of the Crown reserved for or dedicated to any public purpose under the Land Act 1933, or any other Act, and classified as of Class "A", and which is not Crown land within the meaning of that expression in section 4 of this Act — (i) shall be deemed to have been always lawfully issued or granted under this Act; (ii) shall, subject to this Act, continue to apply to so much of the land in respect of which it is granted that is not so reserved or dedicated and so classified; (iii) shall not apply to the land or any part thereof so reserved or dedicated and so classified, until that land or part is declared pursuant to section 5A of this Act, to be Crown land for the purposes thereof. [Section 5B inserted: No. 85 of 1966 s. 3.] Part II — Administration 6. Act administered by the Minister through the Department This Act shall be administered by the Minister through the department. 7. Warden (1) For the purposes of this Act the Governor may appoint persons to be called wardens who shall have the powers, duties and authorities conferred on them by this Act. (2) The warden may, with the approval of the Minister, temporarily delegate his powers as warden to any stipendiary, police, or resident magistrate when the warden by reason of absence, illness, or for any other cause is unable to act. (3) A stipendiary, police, or resident magistrate to whom the powers of warden are delegated as aforesaid shall, until such delegation is determined by the warden, have and exercise and perform all the powers and duties of the warden under this Act. [Section 7 amended: No. 66 of 1954 s. 3.] [8. Repealed: No. 8 of 1940 s. 2.] Part III — General 9. Petroleum declared to be property of the Crown Notwithstanding anything to the contrary contained in any Act, or in any grant, lease, or other instrument of title, whether made or issued before or after the commencement of this Act, all petroleum on or below the surface of all land within this State, whether alienated in fee simple or not so alienated from the Crown is and shall be deemed always to have been the property of the Crown. 10. Reservation in Crown grants All Crown grants and leases under any Act relating to Crown land issued after the passing of this Act shall contain a reservation of all petroleum on or below the surface of the land comprised therein, and also a reservation of the right of access, subject to and in accordance with the provisions hereinafter contained, for the purpose of searching for and for the operations of obtaining petroleum in any part of the land. 11. Power to obtain petroleum (1) The Minister may by his officers, agents, or workmen search for petroleum, and conduct all operations deemed necessary for obtaining, refining, and disposing of petroleum produced in Western Australia; and, for such purposes, may enter upon and occupy, either temporarily or permanently — (a) any vacant Crown land; or (b) any land in the grant or subsisting lease of which from the Crown, whether issued before or after the commencement of this Act, petroleum has been reserved, or held under lease, license, or permit for pastoral or timber purposes only, without making any compensation, except for deprivation of the possession of so much of the surface, including any improvements thereon, as is required for the conduct of the said operations and surface rights of way thereto or therefrom; or (c) any mining tenement within the meaning of the Mining Act 1904, held for the purpose of mining for gold or other mineral, including coal, subject to the payment of compensation for any interference with the operations of the holder thereof. (2) The Minister may by himself and any person acting with his authority, for the purpose of searching for petroleum, enter upon any other land alienated from the Crown for an estate in fee simple before the passing of this Act, or held under a subsisting lease from the Crown issued before the passing of this Act, and conduct all operations deemed necessary for that purpose, subject to the payment of compensation: Provided that the owner or lessee may require the land to be resumed under and subject to the next following section. (3) Any claim for payment of compensation under this section shall be made, dealt with, and determined under and in accordance with the provisions of the Public Works Act 1902, as if it were a claim for compensation made originally under that Act. 12. Land may be resumed (1) The Governor may from time to time under and subject to the Public Works Act 1902, resume on behalf of the Crown any land which in his opinion ought to be resumed for the purposes of this Act, and for the purpose of any such proposed resumption may cause the land to be inspected, surveyed, explored, and reported upon by such officers and workmen as he directs, all of whom may thereupon enter upon the land and carry out all necessary operations. (2) Upon any such resumption the owner shall be entitled to compensation, and the amount of such compensation shall be determined in the manner prescribed by the Public Works Act 1902. (3) Whenever it is proved to the satisfaction of the Compensation Court that damage has been sustained by a claimant by reason of the severance of the land resumed from other adjoining land of the claimant, the court may order that such adjoining land or some portion thereof shall also be resumed. 13. Governor to have right of pre-emption of petroleum (1) Upon the Governor proclaiming a state of national or State emergency, the Governor shall have the right of pre-emption of all petroleum produced by a lessee from any land held under a petroleum lease issued under this Act, or by the owner of land alienated by the Crown and which is subject to an express reservation of petroleum or an implied reservation under the terms of this Act, and of all the products of such petroleum; and in the event of the Governor exercising such right, the lessee or owner concerned shall take all reasonable steps to facilitate the delivery of the petroleum or products thereof, as the Governor may direct. (2) No lessee or owner aforesaid shall sell or otherwise dispose of petroleum produced by him, or the products thereof, without the written consent of the Minister. Penalty: One thousand pounds. (3) Any sale or other disposition of petroleum or the products thereof made in contravention of subsection (2) hereof shall, as against the Governor when exercising the said right, be null and void. (4) The price to be paid for petroleum or products thereof purchased by the Governor pursuant to the said right of pre-emption shall, failing mutual agreement between the Minister and the vendor, be determined by arbitration under the provisions of the Commercial Arbitration Act 2012. [Section 13 amended: No. 23 of 2012 s. 45.] 14. Helium (1) All helium discovered by any licensee of land held under a license to prospect, or by any lessee of land then under a petroleum lease shall be the property of the Crown, and the person discovering the same shall forthwith report such discovery to the Minister. (2) If the Minister shall at any time desire any such helium to be developed and recovered the Crown shall reimburse the licensee or lessee a reasonable amount in respect of the cost of discovery (having regard to the estimated value of the helium) and the licensee or lessee shall have the option of undertaking such development and recovery by notice in writing to the Minister within one month of the notification to the licensee or lessee. (3) The amount of such reimbursement and the manner and terms of such development by the Minister and the licensee and lessee and in default of agreement shall be determined by arbitration under the provisions of the Commercial Arbitration Act 2012. [Section 14 amended: No. 12 of 1951 s. 3; No. 23 of 2012 s. 45.] [15-18. Repealed: No. 8 of 1940 s. 2.] 19. Permit to explore, license to prospect, etc. not transferable without Minister's approval (1) A permit to explore, license to prospect or petroleum lease issued or granted under this Act or any share or interest therein shall not be transferred or assigned without the approval of the Minister being first obtained. (2) A transfer of a permit to explore, license to prospect or petroleum lease is of no effect until it is registered in the manner prescribed. (3) A transfer or assignment of any right, title, estate or interest in any permit to explore, license or prospect or petroleum lease to any person or corporation, not being a person domiciled within, or a corporation formed and registered within the Commonwealth, as the case may be, shall not be registered unless the Minister is satisfied that there are exceptional reasons which justify the registration. (4) A permit to explore, license to prospect and petroleum lease issued or granted under this Act and the regulations may subject to this Act and the regulations be mortgaged or otherwise encumbered by the holder or lessee of the permit, license or lease and shall, in the case of a judgment or order of any court being obtained against the holder or lessee, or in the event of the death, bankruptcy or liquidation of the holder or lessee, be subject to law in the same manner and to the same extent as other property of the holder or lessee is subject. [Section 19 inserted: No. 66 of 1954 s. 4.] 19A. Prohibitions against exploring, prospecting and mining for petroleum Subject to the provisions of this Act, no person shall, after the commencement of this section, explore, or prospect, or mine for petroleum except in pursuance and under the authority of a permit to explore, or a license to prospect, or a petroleum lease, as the case may require, issued under this Act [Section 19A inserted: No. 8 of 1940 s. 6.] 20. Land comprised in a license to prospect or a lease may be entered for certain purposes (1) Subject to the approval and consent in writing of the Minister, any person may enter upon any land comprised in any permit to explore, or any license to prospect or in any petroleum lease, and do any of the following things:— (a) erect poles and posts thereon, and carry overhead across or along such land electric lines, and from time to time repair, alter, or remove such poles, posts, or lines; and (b) make or construct any tramways thereon, and from time to time repair, alter, or remove the same; and (c) construct any road, race, or drain, or lay waterpipes under, over, across, or through such land; and (d) for carrying out any of the said purposes, break or otherwise disturb the surface and soil of such land. (2) If the holder of a permit to explore, or of a license to prospect, or of a petroleum lease, suffers any estimable damage by reason of the exercise of any of the powers mentioned in subsection (1) hereof, the person exercising such powers shall be liable to compensate such holder in respect of the damage so caused. (3) In default of agreement between the parties concerned, the holder of the permit, or of the license or lease may make application to the warden in the prescribed manner to fix the amount of compensation to be paid, and the decision of the warden shall be final and binding on the parties concerned. [Section 20 amended: No. 8 of 1940 s. 7.] 21. Power to agree as to amount of compensation The applicant for any permit, license or lease may agree with the owner and occupier respectively of any private land as to the amount of compensation to be paid for the right to occupy the land in respect of which the application is made. No such agreement shall be valid unless the same is in writing and signed by the parties thereto and filed in the Department of Mines. [Section 21 amended: No. 8 of 1940 s. 8.] 22. Measure of compensation Such compensation to be made to the owner and occupier shall be compensation for being deprived of the possession of the surface or any part of the surface of the private land, and for damage to the surface of the whole or any part thereof, and to any improvements thereon, which may arise from the carrying on of operations thereon or thereunder, and for the severance of such land from other land of the owner or occupier, and for rights-of-way and for all consequential damages. In assessing the amount of compensation no allowance shall be made to the owner or occupier for any gold, minerals, or mineral oil known or supposed to be on or under the land. [Section 22 amended: No. 66 of 1954 s. 5.] 23. Where no agreement, warden to determine compensation If within such time as may be prescribed the parties are unable to agree upon the amount of compensation to be paid, either party may upon a plaint in that behalf have the amount determined by the warden. 24. Compensation already received to be deducted In determining the amount of compensation, the warden shall take into consideration the amount of any compensation which the owner and occupier or either of them have or has already received in respect of the damage for which compensation is being assessed, and shall deduct the amount already so received from the amount which they would otherwise be entitled to for such damage. 25. Owner of private land in vicinity of lease or license entitled to compensation If any private land or improvement thereon adjoining or in the vicinity of the land the subject of any permit, license or lease under the provisions of this Act is injured or depreciated in value by any operations carried on by the lessee or his agents, or the licensee or his agents, or by reason of the occupation of any portion of the surface, or the enjoyment by the lessee or licensee of any right-of-way, the owner and occupier of such private land or improvements thereon shall severally be entitled to compensation for all loss and damage thereby sustained, and the amount of such compensation shall be ascertained in the same manner as is hereinbefore prescribed and the provisions of section 22 shall apply with the necessary modifications. [Section 25 amended: No. 8 of 1940 s. 9.] 26. Compensation for further damage If while in occupation of any land pursuant to the terms of any permit or to the terms of any license or pursuant to the terms of any lease the licensee or lessee or his agents cause any damage to the surface of any private land comprised within the boundaries of the land the subject of the permit, or of the license or lease belonging either to the same or any other owner, or to any improvement on any such private land, not being damage already assessed under the provisions hereinbefore contained, the owner and occupier of such private land or improvement shall severally be entitled to compensation for the damage sustained by each of them, and the amount of such compensation shall be ascertained in accordance with the provisions of section 22, which shall apply, with the necessary modifications. [Section 26 amended: No. 8 of 1940 s. 10.] 27. Holder of permit, licensee or lessee not to commence operations on private land until compensation tendered or agreed upon (1) A holder of a permit to explore or license to prospect or the lessee of a petroleum lese shall not commence any operations on private land unless or until he has paid or tendered to the owner and to the occupier of the land the amount of compensation, if any , which he is required to pay under and as ascertained in accordance with this Act or he has made an agreement in writing with the owner or occupier as to the amount, times and mode of payment of the compensation, if any. (2) Where the is dead or cannot be found any payment of compensation may be made to the Minister in trust for the owner. [Section 27 inserted: No. 66 of 1954 s. 6.] 28. Restriction on granting license or lease in relation to certain private lands No license or lease shall be granted in respect of any private land which is — [(a) deleted] (b) of less extent than half an acre within the limits of any municipality or township; or (c) used as a cemetery or burial place; or (d) at a less distance than 150 yards laterally from any cemetery or burial place or reservoir or substantial improvement, unless in every case the consent in writing of the owner or trustee, as the case may be, of the land in question has first been obtained. In this section the expression reservoir means any natural or artificial storage or accumulation of water, and includes a spring, dam, bore, and artesian well. In every case the Minister shall be the sole judge whether any improvement is substantial. [Section 28 amended: No. 8 of 1940 s. 12; No. 66 of 1954 s. 7.] 28A. Compensation payable to lessee of pastoral lease for damage to improvements and consequential damage (1) Where — (a) the holder of a permit to explore; (b) the holder of a license to prospect; or (c) the lessee of a petroleum lease, has by himself, his agent or employee I the exercise or purported exercise of any of the powers conferred by or under this Act or by reason of any operation conducted or other action taken by him or any of them caused damage to any improvements on land leased for pastoral purpose under the provisions of the Land Act 1933, he is liable, subject to the provisions of section 28D of this Act, to pay compensation to the lessee of the land so leased for the damage and for any damage which the lessee may in the opinion of the warden suffer as a consequence of the damage to the improvements. (2)(a) A person liable to pay compensation to a lessee under the provisions of this section may agree with the lessee as to the amount of compensation including compensation for consequential damage. (b) An agreement under paragraph (a) of this subsection is not valid unless it is in writing and signed by the parties or their agents and filed in the Department. (3) If an agreement is not made under subsection (2) of this section the lessee may commence an action for compensation before the warden or the person liable to pay compensation may so commence an action claiming a declaration as to the amount of compensation payable